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06/19/96 SCOTT GOINS AND PENNY GOINS v. MERCY

June 19, 1996

SCOTT GOINS AND PENNY GOINS, PLAINTIFFS-APPELLANTS,
v.
MERCY CENTER FOR HEALTH CARE SERVICES, JOAN REYNOLDS, AND MARY CURLEY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 93--MR--0470. Honorable Pamela K. Jensen, Judge, Presiding.

Released for Publication July 23, 1996.

The Honorable Justice Rathje delivered the opinion of the court: Doyle and Colwell, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Plaintiffs, Scott Goins and his wife, Penny, appeal from an order of the circuit court which dismissed with prejudice their six-count amended complaint against defendants, Mercy Center for Health Care Services (Mercy Center), Joan Reynolds (Reynolds), and Mary Curley (Curley). Counts I through IV alleged that Reynolds and Curley had committed various intentional torts against Scott. Count V alleged that Curley had committed intentional infliction of emotional distress against Penny. Count VI alleged various violations of the AIDS Confidentiality Act (Confidentiality Act) (410 ILCS 305/1 et seq. (West 1992)) against Mercy Center. Based upon its finding that the exclusive remedy provisions of the Workers' Compensation Act (820 ILCS 305/5(a), 11 (West 1992)) barred recovery on all six counts, the trial court granted defendants' motion to dismiss.

On appeal, plaintiffs contend (1) that the exclusive remedy provisions of the Workers' Compensation Act does not bar an employee from bringing civil actions based on common-law intentional torts against co-employees; and (2) that the exclusive remedy provision does not preclude an employee and his spouse from bringing a civil action pursuant to the Confidentiality Act.

Initially, we address defendants' motions to strike a portion of plaintiffs' reply brief and for leave to cite additional authority, which were ordered taken with the case.

Defendants' motion to strike contends that plaintiffs' reply brief improperly suggests that the trial court was told that plaintiffs would be naming additional parties to the amended complaint. Defendants maintain that the relevant record of proceedings is not in the record. Accordingly, they argue that there is insufficient support in the record for plaintiffs' suggestion and that any doubts arising from the incompleteness of the record must be resolved against the plaintiffs. In response, plaintiffs assert that the order of July 12, 1994, which is in the record, supports the disputed portions of the reply brief.

In essence, we find the arguments relative to this motion are very similar to the arguments which this court addresses in regard to the first issue raised by plaintiffs. To avoid repetition, we deny defendants' motion to strike portions of the reply brief. Having so found, we deny defendants' motion for leave to cite additional authority. The cases cited are used to support defendants' motion to strike portions of the reply brief.

Plaintiffs' amended complaint made the following general allegations. On March 1, 1993, Scott was employed by Mercy Center as a security officer. During his shift on this date, he was summoned to the Mercy Center emergency room by nurse Reynolds. When Scott arrived at the emergency room, he observed a female patient, who was later identified as Annette Sandberg, lying in a patient bed. Scott saw blood in the vicinity of Sandberg's arm or hand, and it appeared that she had pulled out or dislodged her intravenous catheter. Reynolds directed Scott to affix a restraint on Sandberg's arm. Though Reynolds knew that Sandberg was Human Immunodeficiency Virus (HIV) positive and Hepatitis B positive, she did not tell Scott anything about Sandberg's medical condition.

While Scott was kneeling near the head of the bed to secure the restraint, Reynolds was working in the vicinity of Sandberg's arms. Shortly after Scott began to secure the restraint, he heard Reynolds utter an exclamation. He looked in her direction and was hit in the right arm by the intravenous catheter, which Reynolds threw in his direction. Drops of Sandberg's blood from the catheter came in contact with Scott's right eye.

Scott was subsequently treated in Mercy Center's emergency room for his injury. Thereafter, he was told that Sandberg "was HIV positive, a Hepatitis B carrier, and had herpes." Scott was given a prophylactic course of Zidovidine (AZT) in order to lessen the chance that he would contract the AIDS virus. His blood was drawn for the purpose of HIV testing.

On approximately March 3, 1993, Scott was told by employee health nurse Curley that Sandberg had tested negative for the HIV virus. On or about March 4, 1993, Scott was told by Curley that she had been mistaken the previous day and that Sandberg had actually tested positive for the HIV virus. Curley also told him that he had tested negative for the HIV virus.

On approximately March 8, 1993, Scott received a telephone call from Elaine DeHaan, his direct supervisor and Mercy Center's assistant manager of human services. DeHaan told him that she had spoken with Curley and that the latter had informed her that Scott was HIV positive. DeHaan offered to do whatever she could to help and stated that she would tell Scott's co-employees that he would not be in to work for a while. Scott immediately told this information to his wife, Penny. Several hours later on March 8, 1993, Scott talked with Curley, who said that DeHaan had misunderstood part of their conversation and that Scott's HIV test was actually negative. Within a week, after the subject incident, Scott was informed that Sandberg had died of "AIDS or AIDS-related complications."

Count I alleged that Reynolds committed battery against Scott by striking him with an intravenous catheter. Count II alleged that Reynolds intentionally inflicted emotional distress upon Scott. Count III alleged that Reynolds intentionally inflicted emotional distress upon Penny. Count IV alleged that Curley intentionally inflicted emotional distress upon Scott. Count V alleged that Curley intentionally inflicted emotional distress upon Penny. Finally, count VI alleged that Mercy Center was vicariously liable for numerous violations of the Confidentiality Act by Mercy Center employees against both plaintiffs.

Specifically, count VI alleged:

"Mercy Center violated the [Confidentiality Act] and disclosed [Scott's] identify as someone who had been tested for the AIDS virus and, in some instances, the results of that test, in at least the following ways:

a.) putting his name on his prescription bottle of AZT at the hospital pharmacy instead of a confidential number ...


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